Ajay Kumar Gupta vs State
2011 Latest Caselaw 5255 Del

*              THE HIGH COURT OF DELHI AT NEW DELHI



+                          Crl. MC No.457/2010 & Crl.MA 1623/2010

                                             Date of Order: 31.10.2011

AJAY KUMAR GUPTA                                        ...... PETITIONER

                           Through:     Mr. Nitin Sehgal, Advocate

                                  Versus

State                                                   ...... Respondent

                           Through:     Ms.Fizani Husain, APP for State


CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

1.      Whether Reporters of local papers may be
        allowed to see the judgment?                  No
2.      To be referred to the Reporter or not ?       No
3.      Whether the judgment should be reported
        in the Digest ?                               No


M.L. MEHTA, J. (Oral)

1. The challenge in this petition is to the order dated 4.9.2009 and

19.1.2010 passed by learned MM and learned ASJ respectively as

passed in case FIR No.180/2005 under Section 354/509 IPC Police

Station IP Estate. Relief is also sought for striking off the examination in

chief of PW3 Smt. Krishna Chawla as recorded by learned MM on

2.1.2009 and 4.9.2009.

2. The learned MM recorded the statement of PW3 Krishna Chawla

on 2.1.2009. During her examination in chief, the learned MM made the

following observations:

"At this stage, the witness is feeling embarrassed to depose in presence of male persons and therefore I had requested all the persons including learned APP, counsel for the accused and the complainant to go out side from the court room and I am recording her examination in chief only in the presence of accused and my steno.

"While the evidence of witness being recorded the

accused is smiling in a lustful manner. When he is

asked to mend his way, he does not appear to feel

any repentance."

3. After recording the above observations, the learned MM

proceeded to record the examination in chief of the witness PW3 in

absence of APP as also the learned counsel for the accused. However,

the accused remained present in the court during the remaining part of

her examination in chief. The petitioner was aggrieved of this act of

learned MM in proceeding to record the examination in chief of PW3 in

absence of his counsel. Thereafter, the petitioner filed a review

application dated 24.4.2009 before the learned MM for striking off the

examination in chief of PW3 as recorded on 2.1.2009. The said

application was dismissed by learned MM vide order dated 4.9.2009.

The recording of evidence by learned MM in the manner as stated

above and the observations made by her, were challenged by the

petitioner by way of a revision petition before learned ASJ who vide her

order dated 19.1.2010 dismissed the revision petition.

4. The petitioner challenged the order dated 4.9.2009 of learned

MM before the learned ASJ which came to be dismissed by learned ASJ

vide order dated 19.1.2010 holding that the said order did not suffer

from any illegality or infirmity and the review application was not

maintainable on account of limitation. Learned ASJ observed that the

limitation for filing the revision petition to be 30 days from the date of

the order and the same having been filed much after that without there

being any justifiable reasons for delay, the petition was not

maintainable.

5. I have heard learned counsel for the parties and perused the

record.

6. Learned APP for the State fairly conceded to the fact that the

limitation prescribed for filing of the revision petition was not 30 days,

but 90 days from the date of the order and that being so, the finding of

learned ASJ that the revision petition was not maintainable, being

barred by limitation, is apparently untenable. However, it is seen that

the learned ASJ did not dismiss the revision petition solely on the

ground of limitation, but has also recorded that there was no illegality

or impropriety in the impugned order dated 4.9.2009 of learned MM. It

was also recorded by learned ASJ that the revision petition filed before

her was for striking off the examination in chief of PW3 recorded on

2.1.2009 and for recording the same de novo and further that the

review petition which was filed before learned MM was not maintainable

as learned MM was not empowered to review its own order. The

observations of learned ASJ on both these aspects are factually correct

inasmuch as it remained an undisputed fact that the learned MM has no

power to review its own order and if that was so, the application dated

24.4.2009 filed by the petitioner for recalling the order dated 2.1.2009

was not maintainable. Though such an application was not

maintainable, but since it had been filed, the learned MM vide order

dated 4.9.2009 dismissed the same. It was rightly recorded by learned

ASJ that in the revision petition filed before him, the petitioner was

seeking striking off the examination in chief of PW3 as recorded on

2.1.2009 and for recording of the same de novo.

7. I do not see any illegality or impropriety in the impugned orders

dated 19.1.2009 passed by learned ASJ with regard to the findings that

the petitioner had failed to show any illegality or irregularity in the

impugned order dated 4.9.2009 of learned MM. Thus, except for the

finding recorded about limitation as noted above, which is untenable,

there is no illegality or impropriety in the impugned order of learned

ASJ.

8. Now coming to the proceedings of 2.1.2009 as conducted by

learned MM, it would be seen that the learned MM's observations that

PW3 was feeling embarrassed to depose in presence of male persons

and consequently she requested that all the persons present including

APP and the counsel for the accused and the complainant to remain

outside the court room and proceeded to record the statement of PW3

in the presence of accused. She also observed that while PW3 was

being examined, the accused kept smiling in a lustful manner despite

that he was asked to mend his way. The learned MM has also clarified

the same thing in her order dated 4.9.2009 that whenever PW3 was

feeling inconvenience, the proceedings be recorded in camera in

absence of counsel for the accused as well as complainant. The learned

MM had recorded examination in chief of PW3 in presence of the

accused which was the procedure prescribed under Section 273 Cr.P.C.

In case of Sakshi v Union of India and others [(2004) 5 SCC 518 the

Apex Court observed as under:

"34. The writ petition is accordingly disposed of with the following directions: (1) The provisions of sub-section (2) of Section 327 Cr.P.C shall, in addition to the offences mentioned in the sub-section, also apply in inquiry or trial of offences under Sections 354 and 377 IPC.

(2) In holding trial of child sex abuse or rape:

(i) a screen or some such arrangements may be made where the victim or witness (who may be equally vulnerable like the victim) do not see the body or face of the accused;

(ii) the question put in cross examination on behalf of the accused, insofar as they relate directly to the incident, should be given in writing to the presiding officer of the court who may

put them to the victim or witnesses in a language which is clear and is not embarrassing;

(iii) the victim of child abuse or rape, while giving testimony in court, should be allowed sufficient breaks as and when required.

These directions are in addition to those given in State of

Punjab v. Gurmit Singh (1996) 2 SCC 384."

9. In view of above discussion, I do not find any illegality of

perversity in the orders dated 2.1.2009 and the order dated 4.9.2009

and also the impugned order dated 19.1.2010 passed by learned ASJ to

the extent as indicated above. I find no force in this petition. The

petition is dismissed. No orders as to costs.

M.L. MEHTA (JUDGE) October 31, 2011 rd